In 1881, the private St. Augustine-based Florida canal company agreed to dredge an inland waterway from Miami, Fla., to St. Augustine, Fla., and later to Jacksonville, Fla., a distance of approximately 400 miles. For every mile of waterway dredged, state legislators agreed to convey to the canal company 3,840 acres of state-owned land. Upon the delivery of the last (12th) deed to the canal company, the State had granted the canal Company a little over a million acres of public land.
Of the total length of the waterway, between 80% and 85% of the total was pre-existing waterway. Nonetheless, of that 80% to 85% of the waterway, much of it required the dredging of safe, uniform channels as we see them today in the Intracoastal Waterway.
Moreover, both artificial and natural inlets dot Florida’s east coast making difficult maintenance of the waterway at these points. Natural littoral drift along the entire Atlantic coast would routinely fill up these inlets and the Intracoastal Waterway. Some inlets like the Hillsboro Inlet have special navigation districts formed for the purpose of addressing littoral drift. In his report of 1889, Corthell opined that inlets would bring sea water into the inland waterway and naturally kill off fresh water plants such as the hyacinth that often clogged the waterways, representing navigational hazards.
In the short period of time between kerosene or oil lamps and electricity, many cities, towns, and villages, hotels and businesses throughout America relied upon the often dangerous acetylene gas generator. Such also was the case for canal dredges and excavators running day and night, twenty-four hours a day. The generators mixed calcium carbide and water, generating acetylene gas for lighting dredging work at night.
The several agreements between the State Legislature and the canal company set out strict completion dates. In the last agreement calling for completion by 1912, dredges worked night and day in various places throughout the length of the Florida peninsula, including the incorrigible Matanzas-Halifax river cut, now in its 30th year of dredging in hard rock. In November 1912, the state trustees delivered to the Florida canal company the 12th and last deed to public land, totaling over one million acres for dredging 268 miles of inland waterway, later to comprise the Atlantic Intracoastal Waterway.
Several years ago, the City of Riviera Beach (“the City”) straddling the Intracoastal Waterway (ICW) in Florida, arrested a houseboat under federal maritime law and demolished it. The homeowner, Mr. Lozman had lived on his houseboat for more than a dozen years under a lease with the City. The City had sent Lozman several eviction notices for deficiencies in the houseboat and failure to make certain payments.
The District Court of the Southern District of Florida found that the houseboat was a “vessel” for purposes of admiralty jurisdiction, that the vessel was delinquent in payments, put the vessel up for auction, the City bought it for the amount of its judgment and demolished it.
The court held that the houseboat met the definition of a “vessel”within the meaning of 1 U.S.C. s. 3; accordingly, federal maritime law applied despite the fact that the houseboat had been an “indefinitely moored” structure. It was still “capable” of transportation.
The Eleventh Circuit Court of Appeals agreed with the District Court’s holding that Lozman’s houseboat constituted a “vessel” for purposes of maritime jurisdiction and that Lozman’s houseboat “trespassed” upon city property.
On January 15, 2013, the Supreme Court reversed. The Court held that Lozman’s houseboat was not a “vessel” for purposes of invoking maritime jurisdiction. Except for the fact that it floated upon the water, Lozman’s houseboat had no means of self-propulsion, no steering mechanism, an unraked hull, no means of storing or generating electricity, and no realistic means of transporting passengers or cargo.
Federal courts therefore have no jurisdiction over “houseboats” similarly configured and indefinitely moored. In general, federal courts have exclusive maritime jurisdiction over “vessels” like boats in navigable waters such as the Intracoastal Waterway. Although federal jurisdiction protects those who improve and work on boats by affording workers the right to arrest a vessel for unpaid work and enforce a lien for such charges as well as the right to seek damages for trespass on private property, asserting federal jurisdiction also brings into play the regulatory powers of the Coast Guard to insure public safety as well as other agencies working to protect the environment and other public interests.
Under a state pilot program, St. Augustine enacted an ordinance requiring boats to moor at least fifty feet from the navigable channel of the Intracoastal Waterway. One man who has lived aboard his sailboat for eleven years filed suit challenging the law in federal court.
Under federal maritime law, the federal government has the right to establish mooring rights within the Intracoastal Waterway and its tributaries. The federal supremacy clause makes federal law the supreme law of the land.
Generally, regulation of the use of the Intracoastal Waterway depends upon whether or not the federal government has preempted state and local law by enacting federal law over various uses of the waterway. However, the State of Florida owns the bottom lands of the Waterway by right of sovereignty under federalism. Unless the federal government intervenes in various uses, local governments may set speed limits for marine vessels, for example, transiting the waterway.
Court watchers await the final decision of the United States Supreme Court if the matter reaches that level of judicial authority. The author of this blog believes the federal government will prevail. In the absence of a uniform federal law on mooring, the author envisions scores of municipalities each with a confusing mishmash of differing mooring laws along the waterway.
Commodore Avylen Harcourt Brook was born in Sheffield, England, in 1866 into a family of silver and bronze electroplaters. His early education was in England. Brook studied art under the famous English artist and critic John Ruskin. It was said that one of his ‘parlor tricks’ was to paint two paintings simultaneously, one with his right hand, the second with his left hand.
He migrated in his early teens to Brooklyn, New York, where he soon became president of the Thomas Cusack Outdoor Advertising Agency. There, Brook created the famous Maxwell House “Good ’til the last drop” neon sign and turned Broadway into the ‘Great White Way’, with advertising signs everywhere in neon lights. As president, Brook was earning $25,000 a year, a princely sum in those days.
In 1919, at the age of 53, Brook retired. He sailed his 22-foot sloop ‘Klyo’ down the Atlantic coast to Fort Lauderdale where he lived in a modest residence named ‘Brookside’ on the New River; his sloop ‘Klyo’ docked in the back on the River. Brook had acquired the title Commodore from his leadership of at least two yacht clubs on the Long Island Sound. Brook had been a member of various groups that promoted the construction of a continuous inland waterway inside the Atlantic coast. In Fort Lauderdale, Brook represented Broward County as a member of the Florida Inland Navigation District (FIND), tasked with the duty of acquiring the old Florida East Coast Canal tollway and turning it over to the federal government for enlargement and perpetual maintenance. When Brook died, downtown retailers closed for half a day in respect for Brook’s contributions to the community.